IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140008103 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

* his intentions were to enlist for 2 years but his recruiter told him that he would be guaranteed training and placement if he enlisted for 3 years
* he enlisted for 3 years and received neither
* his choice of placement was Vietnam because he wanted to fight for his country and he never got the chance
* he thought his guarantee was in his paperwork and he never thought he would need a copy for himself
* he completed basic training and received orders for diesel mechanic training
* he was told to live with it and he tried to accept it
* he was sent to Fort Hood to work in the motor pool as a mechanic but he could not handle it
* he ended up being dysfunctional and eventually received an undesirable discharge
* some of his friends were forgiven or received amnesty for going to Canada to avoid the draft
* he desires an upgrade for benefits since he is living in a veterans’ transition house
* he is trying to get his life back and become a productive member of society

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Report of Separation from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 29 September 1972 for a 
3-year period. 

3.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he enlisted for military occupational specialty (MOS) 62 (Heavy Equipment Operator and Maintenance).

4.  His DA Form 3286-5-R (Statements for Enlistment - Part VI (U.S. Army Career Group Enlistment Option)), dated 29 September 1972, shows he acknowledged:

* he was enlisting for MOS 62 and there were 12 other MOS’s included in the career group he selected
* he had to attain a score of 85 or higher on the Motor Vehicle Driver’s Selection II Battery I test
* he had not been made any other promises or representation of commitment in connection with his enlistment

5.  His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost under Title 10, U.S. Code and Subsequent to Normal Date End of Term of Service) periods of being absent without leave (AWOL) as follows:

* 2 December 1972 to 9 December 1972
* 19 April 1973 to 2 May 1973
* 7 August 1973 to 2 September 1973
* 3 July 1973 to 8 July 1973
* 9 July 1973 to 10 July 1973

6.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 30 March 1973, for failing to go to his place of duty at the prescribed time
* on 7 May 1973, for being absent without leave (AWOL) on or about 24 April 1973 until on or about 3 May 1973
* on 25 July 1973, for being AWOL on or about 9 July 1973 until on or about 11 July 1973 and for failing to go to his place of duty at the prescribed time on 24 July 1973
* on 5 September 1973, for being AWOL on or about 7 August 1973 until on or about 3 September 1973
* on 30 October 1973, for disobeying an order
* on 13 November 1973, for leaving his place of duty without authority on 5 November 1973, being disrespectful to a commissioned officer on 6 November 1973, and disobeying an order

7.  On 2 October 1973, his company commander notified him he was initiating action to separate him for unfitness under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1).  His commander advised him of his rights.  

8.  On 2 October 1973, his commander submitted a request for a waiver of his rehabilitation transfer.  His commander stated the applicant had a continuous lack of appropriate interest and a number of defective attitudes.  He had a degree of difficulty in performing under his supervisors.  He repeatedly expressed a desire to be released from military service during counseling sessions.  His commander felt that as long as he remained on active duty he would continue to be a discredit to the Army.

9.  On 5 October 1973, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  

10.  On 9 October 1973, the applicant was found to be physically and mentally fit for duty without profile limitations.  He was also found to be responsible for his acts and able to understand and participate in board proceedings.

11.  On 19 November 1973, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 13, and directed that the applicant be issued an Undesirable Discharge Certificate.

12.  On 5 December 1973, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year and 11 days of creditable active service and he had 57 days of lost time.

13.  The applicant provided a copy of his DD Form 214 and a self-authored statement explaining the aforementioned circumstances leading to his discharge.

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was guaranteed training and placement, his contract shows he acknowledged that there were 12 other MOS’s included in the MOS for which he applied.  Further, he acknowledged that he had not been promised or guaranteed anything else.

2.  His records reveal an extensive history of misconduct that included at least six instances of NJP, five periods of AWOL, disobeying orders, and being disrespectful to a commissioned officer.  Accordingly, his chain of command initiated separation action against him.

3.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  Based on his extensive record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her character of service.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans' benefits should be addressed to the entity granting the benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 
are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   x_______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140008103



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ABCMR Record of Proceedings (cont)                                         AR20140008103



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